A palm wine tapper will spend 10 years in prison for murder, even as the woman, whose husband he killed to cohabit with her, walked to freedom.
The High Court in Malindi sentenced Mzungu Dadu after finding him guilty of murdering Swaleh Kalume, who had come to his homestead to reclaim his wife.
“I sentence Dadu to 10 years’ imprisonment, being alive to the provisions of Sections 333(2) that the sentence shall run from the date of his arrest,” Justice Reuben Nyakundi ruled in a judgment dated August 8, 2024.
The judge stated that Dadu’s mitigating factors were overshadowed by the aggravating factors, but clarified that he had taken his mitigation into account.
“This case involved circumstances in which the deceased went after his family, which was within the premises under the control and occupation of the accused, only to meet his death,” added the judge.
Justice Nyakundi stated that the evidence presented by the prosecution witnesses established the crime of murder along with malice aforethought, which was provoked by the deceased’s visit to the accused’s home in search of his family.
“This was a case where the deceased went for his rival who retaliated in turn with full force and in the end, he became the first casualty,” said the judge.
However, Kalume’s widow, Neema Tsui Ghai, who was also charged with murder, was acquitted as the court ruled that no evidence was presented to prove her involvement in the murder of her husband, whom she had left at the time due to his neglect of her and their children.
The judge said it was so difficult and risky to define the concept of reasonable doubt as having been established against her from the prosecution evidence to warrant a finding of guilty piecing together the various aspects stated on oath by the witnesses in support of the charge.
“Given the shortcomings surrounding Ms Ghai’s actual involvement, the law permits me to find her not guilty and order her acquittal for the offence of murder,” the judge said.
They were charged with the murder of Mr Kalume on February 16, 2019, at Masheheni village in Magarini, Kilifi County. Both had pleaded not guilty.
The court heard that on the night of February 16, 2019, Kalume went to one of Kakala Kirao’s homesteads to resolve issues with his wife, Ms Ghai.
According to Mr Kirao, who testified in the case, Ms Ghai and Dadu cohabited at his homestead as intimate friends, even though the woman was also married.
“The deceased had come to my homestead to follow up on some issues with Ms Ghai. That is when a conflict arose between Dadu and the deceased, which ultimately escalated into a full-blown fight. The outcome was the deceased’s death,” said the witness.
The deceased’s son, Swaleh Salim, testified that Dadu armed himself with a club, which he used to strike his father on the head.
“In retaliation, my father armed himself with a knife, which he used to injure Ms Ghai in the neck,” he said.
“The entire incident involved a quarrel between the accused and Ms Ghai, which prompted the now-deceased father to attempt to intervene,” he said.
In his defence, Dadu largely denied committing the offence and explained that he was not at home on that fateful night, as he had gone to the neighborhood to tap wine and remained there until the following day.
“I returned to Maweni, and that is when I heard about the deceased’s death. There is no love affair between me and Ms Ghai, as alleged by the prosecution witnesses,” he said.
However, it was Ms Ghai's testimony that solidified the prosecution’s case against Dadu. She denied killing the deceased, whom she confirmed was her husband.
She also recounted her marital challenges and the long-standing conflict with the deceased, which began in 2018 and escalated into 2019.
“The deceased neglected my family and focused solely on wine tapping. Due to irreconcilable differences with the deceased, I left the matrimonial home for my stepfather’s residence,” she told the court.
Ms Ghai stated that the deceased followed her to her stepfather’s home, where a confrontation occurred between them, resulting in his death.
She mentioned that a series of mediation talks conducted by elders to reconcile them and restore their relationship proved futile, forcing her to leave her home. She then sought shelter within the accused's homestead but denied cohabiting with him.
According to her, the unfortunate event leading to the deceased's death was precipitated by his behavior when he visited the homestead accompanied by his other wife.
“In the middle of the night, the deceased, armed with a knife, began inflicting bodily harm, but in the struggle, I managed to disarm him,” she said.
She stated that the neighbours responded to her distress calls and rescued her from the deceased's wrath.
“I did not cause the deceased's death. The information about his death reached me while I was at the hospital seeking treatment for the injuries earlier inflicted by the deceased,” she said.
Other prosecution witnesses testified that the incident occurred when the deceased visited Dadu’s residence to win back his wife, who was at that time cohabiting with the accused.
It was at this point that a fight broke out between the deceased and Dadu, leading to the murder of Mr Kalume.
The post-mortem report established that the deceased suffered severe injuries to the head, which caused his death.
The Judge concluded that the evidence presented before him indicated that the deceased's death was unlawfully caused during the scuffle between him and Dadu, apparently in the presence of Ms Ghai.
“The motive is traceable to an alleged affair between the two accused persons. Perhaps Dadu's unlawful act was to permanently restrain or prohibit the deceased from following his wife. A love triangle with the deceased sparked the fight,” said the judge.
Justice Nyakundi stated that not only was malice aforethought evident in the present case but there was also a clear intent by Dadu to kill or seriously injure the deceased.
